The Law Office of Jason Tenenbaum, P.C., Garden City (Jason
Tenenbaum of counsel), for appellant.
Law Offices of Melissa Betancourt, P.C., Brooklyn (Melissa
Betancourt of counsel), for Empire Acupuncture, PC,
respondent.
Amos Weinberg, Great Neck, for Multiple Medical Health
Services P.C. and Infinite Chiropractic, PLLC, respondents.
American Tr. Ins. Co. v Marte-Rosario, 2013 NY Slip Op 07416 (1st Dept. 2013)
“Plaintiff established its entitlement to summary judgment by submitting an affidavit of service demonstrating that the notices scheduling independent medical examinations (IMEs), in connection with a no-fault insurance claim filed by Maria Marte-Rosario, were properly mailed to her and her counsel, and the doctor’s affidavit establishing Marte-Rosario’s failure to appear at the scheduled IMEs (see American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [1st Dept 2013]). The affidavit of service raised a presumption that a proper mailing occurred, which defendants failed to rebut by submitting a returned letter to Marte-Rosario from her counsel, with the name of her street apparently misspelled; in any event, there is no evidence rebutting the showing that the notices were served on Marte-Rosario’s counsel (see Matter of Ariel Servs., Inc. v New York City Envtl. Control Bd., 89 AD3d 415 [1st Dept 2011]). As it is undisputed that Marte-Rosario’s appearance at scheduled IMEs was a condition precedent to coverage, plaintiff was entitled to deny the claim (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011],lv denied 17 NY3d 705 [2011]).”
The address in this case for Assignor was “632 Faile Street, #1, Bronx, New York 10474.” It was noted in certain proofs that correspondences were sent to: “632 Failes Street, #1, Bronx, New York 10474.” Thus, a letter was presented showing that correspondence was returned if mailed to that address. The Court held that this did not matter, and would require an affidavit of non-receipt of Marte-Rosario on this score to defeat the motion.
Moreover, the court said that even if the letter was not received by Marte-Rosario, it was received by her personal injury attorney,The Law Offices of Barry Richard Feldman, LLC. Also, be aware that there was no proof in the record, i.e., a letter of representation, that Claimant was actually represented by Mr. Feldman. Under Appellate Term, and now Appellate Division jurisprudence, the burden is on the objectant – i.e. the medical provider or EIP – to demonstrate that the purported attorney was not counsel for Claimant when the letters were sent.
A very powerful case.
6 Responses
Terrible decision. Goes against the regs. The letter has to be sent to the EIP and representing attorney and where does the court get the authority to put the burden on the provider when the carrier is seeking the AV. 1ST Dept. SMH
I am not shedding any tears.
Agree with Alan. JT great job, but the arguments by the defendants were weak. The decision makes a mokery of the regs. The Appellate Division 1st Department is once again showing lack of knowledge of the regs, insurnace law and the binding court of appeals precident. Thanks God there is still the Second Department where the Appellate Division actually knows how to read, interpret and apply the law to the facts. As many other decisions, this will create a split in the departments and make it that much more difficult for the Plaintiff’s bar to recover their cases on the other side of the city. As they say bad facts make bad law. Try this in the Second Department.
Thanks Rookie. I think the arguments were: (1) Bad mailing affidavit; (2) Conclusory no-show affidavit; (2) Misspelling in address; (3) Did not prove who PI attorney was; (4) No business record foundation; (5) Defense is precludable. Missing was justiciable controversy and discovery is not complete. I do not know how the App. Div Second Dept. would rule on this. The App. Term Second Dept. (assuming they had jurisdiction over a DJ matter) up until now would have thrown the case out and probably would have thrown me out from the 15th floor at 141 Livingston. Looks like a different world in the failure to comply arena.
JT – great job for your client. Taking nothing away from you …. this decision …. you gotta be $@#!$ kidding me.
Your client better give you more work! On this case, you pulled a rabbit out of your hat or the Court asked the Long Island Medium for help.
And about tears – not even crocodile tears?
He pulled a Hamster out of his ass Kurt my boy.